Rehnquist's death brings new issues

Posted: Monday, September 05, 2005

By Jesse J. HollandAssociated Press

WASHINGTON - Supreme Court Chief Justice William Rehnquist's death created upheaval in Washington on Sunday, as President Bush and the Senate scrambled to deal with two court vacancies, including this week's scheduled confirmation hearings of nominee John Roberts.

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Funeral arrangements for Rehnquist, who died at home late Saturday after a long battle with cancer, were still being finalized Sunday.

Flags flew at half-staff at the Supreme Court and the Capitol across the street in honor of the chief justice, who was on the Supreme Court for 33 years and its leader for 19.

But as workers planned to drape the chief justice's seat in black for the beginning of the Supreme Court's new term on Oct. 3, the president said he would move to fill the vacancy promptly for the good of the nation.

"I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist," he said in a televised announcement from the White House. He planned to head back to the Hurricane Karina-devastated Gulf Coast on Monday.

The fate of Bush's first nominee to the nation's highest court remains up in the air, but Roberts appeared to be heading for confirmation, as Democrats could not raise significant problems about his nomination.

But Democrats now want Roberts' scheduled confirmation hearings this week to be delayed in part because of Rehnquist's death.

"Out of respect for the memory of Chief Justice Rehnquist and in fairness to those whose lives continue to be devastated by Katrina, the Senate should not commence a Supreme Court confirmation hearing this Tuesday. A brief postponement will not disadvantage anyone," said Senate Minority Leader Harry Reid, D-Nev.

Roberts is slated to replace retiring Justice Sandra Day O'Connor, who has said she will stay on the court until her replacement is confirmed.

But Rehnquist's death brings open a second position, the first time since 1971 that there have been two vacancies on the Supreme Court at roughly the same time. Rehnquist, then a Justice Department lawyer advising President Nixon on how to handle the rare opportunity, and Lewis Powell Jr. were nominated as associate justices to fill those two positions in 1971.

It is unlikely the Supreme Court will have all nine positions filled before the new term begins next month, because it could take up to three hearings to complete the court's roster.

Bush could nominate Roberts to fill the chief justice's chair; elevate a sitting justice like Justices Antonin Scalia or Clarence Thomas to the top spot; or nominate a new person for chief justice.

If a sitting justice is elevated, the Senate Judiciary Committee would have to hold a separate chief justice hearing, as well as two more hearings: one to replace the person newly elevated to chief justice and another one on Roberts.

Bush already was suffering from sagging approval ratings over the Iraq war and gasoline prices that were high even before Katrina wreaked havoc on the Gulf Coast, and might not be able to afford a bruising battle if he makes a controversial choice to replace the chief justice.

Justice John Paul Stevens, the court's senior justice, will fill the administrative role of chief justice until a new one is confirmed. However, he will not sit in Rehnquist's chair when the new term begins. It will be draped in black if a new chief justice has not been confirmed.

Stevens repeatedly clashed with Rehnquist over court rulings, but on Sunday called him "an inspiration to those of us privileged to serve with him." Scalia called Rehnquist's death "a double loss for me; he was my friend long before he was my chief." Thomas called Rehnquist "a good man who epitomized fairness, dignity and strength of character."

The new vacancy begins a new round of guessing on who Bush's next nominee will be. O'Connor's retirement leaves only one woman on the Supreme Court: Justice Ruth Bader Ginsburg. Bush will be under pressure to choose a Hispanic or a woman for the court.

Democratic Sens. Charles Schumer of New York and Christopher Dodd of Connecticut said President Bush should ask O'Connor to rescind her retirement and perhaps become chief justice.

"Asking her to stay on, at least until January, gives the president a bit more time to think this process through, rather than trying to jam decisions," Dodd told Fox News Sunday.

O'Connor cited her age and a need to spend more time with her family in her retirement statement, but "she's a patriot who would do what her country needed," Schumer told The Associated Press.

Schumer, head of the Democratic Senatorial Campaign Committee and a Judiciary Committee member, also called for a temporary delay in the Roberts hearings out of respect for Rehnquist.

"I think it's appropriate to take a breath and commemorate Chief Justice Rehnquist," Schumer said. "To rush forward with the hearings during this period of mourning would be somewhat disrespectful."

But Sen. John Cornyn, R-Texas, a former state judge and a member of the Senate Judiciary Committee, called for the hearings to proceed.

"We should recess to pay respects to the chief justice and his family," Cornyn said. "But we should continue on with the confirmation hearings to make sure that there aren't eight justices on the court when the new session begins."

With eight justices, the court could deadlock on hard issues once the new term begins. If the Supreme Court votes 4-4, the ruling of the lower court stands.